Bathroom Breaks Only

It's playoff time again, so I'll be watching a lot of baseball on TV in the next few weeks. I'll take in a lot of ads but I'll also miss quite a few. I will, for example, take advantage of the commercial breaks to channel surf, stretch my legs, or grab something from the fridge. Does this make me a thief? Jamie Kellner, president and CEO of the WB Network, thinks so. May I go to the bathroom, Mr. Kellner? "I guess there's a certain amount of tolerance for going to the bathroom," Kellner told Cableworld last year. Phew!

According to Kellner, "Your contract with the network when you get the show is, You're going to watch the spots." I don't recall signing any such contract. Do you? Perhaps the entertainment industry managed to slip it into the Digital Millennium Copyright Act (DMCA), but I'm certain I would have heard about this.

The other week, a Spectator columnist raised the possibility that the 60 million Americans who have downloaded music from the Internet are moral imbeciles. Which part of "thief" don't you understand? he asked.

Well, over the last 30 years I have purchased tens of thousands of dollars worth of CDs and DVDs. I always assumed that buying these products made me the owner of them. According to Jack Valenti, president of the Motion Picture Association of America, I was mistaken. During a Washington Post online chat about the legality of consumers (like me) who make copies of CDs and DVDs for their personal use, he replied, "If you have a CD or a DVD in digital form, then you already have your personal copy." So now Jack Valenti is calling me a thief too.

Who else thinks I'm a thief? EMI, the British record label. I'm a fan of Radiohead, so I bought their new album, ironically titled Hail to the Thief, the day it was released. This is a "copy protected" disc, which makes it impossible to "rip" the tracks and make them available for others to download via peer-to-peer networks. All I wanted to do was play the disc on my computer stereo, but it wouldn't play with Real Player or Windows Media Player, and then the music-player software on the disc crashed my computer. I finally succeeded in getting it to play, only to find that reproduction was an atrocious 48 kilobytes per second (normal discs are reproduced at 1,411 kilobytes per second) -- the better I suppose, to prevent me from stealing the music for my own personal use.

If the record industry wants to know why it is so hated, it could ask me. I am one of its best customers, so why does it call me a thief?

Years ago I joked that soon children wouldn't be able to scrawl cartoons on walls without Disney lawyers showing up with cease-and-desist orders. Things have not come to that pretty pass yet, but we're almost there. How long before the publishing industry alleges that those who lend their books to friends are guilty of theft too?

According to a September CBS-New York Times poll, only 37 percent of Americans believe Internet file sharing is "never acceptable." Some have cited this as evidence of moral rot, but could it not, perhaps, be a perfectly rational reaction to the positions taken by Jamie Kellner, Jack Valenti, and EMI? If the bathroom break is theft, then we are all thieves, and one might as well be hung for a sheep as for a goat.

When a majority of Americans disagrees that Internet file sharing is immoral, the recording industry faces a catastrophic crisis of confidence. So how is the Recording Industry Association of America (RIAA) attempting to win back hearts and minds? With a slender carrot and a very big stick. The carrot is an offer of amnesty to downloaders who sign affidavits swearing they won't do it again. The stick is lawsuits against individual downloaders that, if successful, would bankrupt their great great grandchildren -- we're talking millions of dollars; up to $150,000 per song.

The DMCA gives the RIAA authority to compel Internet Service Providers to divulge the names, addresses and telephone numbers of suspected downloaders. As a story on internetnews.com explains, "Unlike usual subpoenas, DMCA subpoenas can be filed prior to any charges of infringement, are not subject to a review by a judge, and requires no notice to, or opportunity to be heard by, the alleged infringer."

The legal term for this is ex parte, and traditionally such abuses of constitutional rights have been permitted only when there is a clear and present danger to human life. Internet provider Verizon and others have challenged the constitutionality of the subpoenas in court, while Republican Senator Sam Brownback of Kansas has introduced legislation to rescind this provision of the DMCA. So far, the RIAA has issued more than a thousand subpoenas, sued 261 individuals, and settled with 64. Some of those sued include a grandfather whose grandchildren allegedly downloaded songs during visits and 12-year-old girl who lives with her single mother in public housing. She settled for $2,000.

To say that these lawsuits have resulted in a catastrophic public-relations hit for the RIAA would be an understatement, but the organization presses ahead regardless, promising hundreds of thousands of additional suits. The PR hit the RIAA will suffer when some parent of a downloader loses his house or is sent to prison can only be imagined.

The RIAA should reconsider. Fast. The cassette recorder didn't kill the music industry, and the video recorder didn't kill the movie industry. Rather, they became new revenue streams. File sharing could too. Napster, in its death throes, offered the record industry a deal -- join with us, and we'll share the profits. Bertelsmann was the only major smart enough to sign on.

The record industry killed Napster, but file sharing didn't die -- it became further distributed and harder to control. There is no evidence the RIAA's strong-arm tactics are scaring downloaders straight. When the entertainment industry went digital, it made not only the old technology obsolete but also the old copyright law. The RIAA must learn how to live with this or perish.

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